RAMENDRA NARAYAN ROY Vs. SMTBIBHABATI DEBI

JUDGEMENT

(1.) Raja Rajendra Narayan Roy of Bhowal died leaving three sons as his heirs, Kumar Ranendra Narajan, Ramendra Naraian and Rabindra Narayan. Ranendra Narayan and Rabindra Narayan died childless leaving widows, who inherited their respective shares. It was alleged that the second son, Ramendra Narayan, had also died childless in 1909 leaving his wife Srimati Bibhabati Debi as his heir. In 1911-1912 the Court of Wards took over the management of the whole of the Bhowal Raj estate on behalf of the widows of Ranendra and Rabindra and also on behalf of Srimati Bibhabati Debi. The plaintiff, who is the applicant before us, instituted a suit in the Court of the Subordinate Judge at Dacca for a declaration that he was Ramendra Narayan Roy, the second son of Raja Rajendra Narayan, and was so entitled to an undivided third share of the Bhowal Raj estate and for possession of the said share. Srimati Bibhabati Debi was the principal defendant in that suit. That suit, which was later on transferred to the Court of the Additional District Judge, Dacca, was decreed in his favour on 24- August, 1936. Before filing an appeal to this Court Srimati Bibhabati Debi obtained an order from the Court which had passed the decree by which execution of the decree was stayed till 21 November 1936. Srimati Bibhabati Debi filed her appeal against the said decree, being First Appeal No. 1 of 1937, on 5 October, 1936. Thereafter, at her instance a rule was issued by this Court on the plaintiff to show cause why the execution of the decree should not be stayed till the disposal of the said first appeal. That rule came on for final hearing before S.K. Ghose and Mc Nair JJ. Their order, which was passed on 13th December 1936, is reported in Bibhabati Debi V/s. Ramendra Narayan Roy ( 37) 65 C.L.J. 127. The execution started by the plaintiff was allowed to proceed on terms. Those terms were : (1) That the manager of the Court of Wards was to remain in Charge of the properties in suit but as manager of the plaintiff ; (2) that the plaintiff was to execute in favour of the said persons a power of attorney on terms indicated in that order; and (3) that the plaintiff was to furnish security for rupees two lacs.

(2.) The amount of the security was fixed on an estimate that the net annual income of the properties in suit was rupees one lac and that the first appeal would be pending for two years only. It was expressly stated in the order that if the appeal was not disposed of in two years the appellant would have the liberty to apply for reconsideration of the amount of the security. The plaintiff executed the power of attorney in favour of Rai Saheb U.N. Ghosh, who was at that time the manager of the Court of Wards and gave security for rupees two lacs. His application for execution therefore was proceeded with. Srimati Bibhabati Debi filed an objection to that application under Section 47, Civil P.C. Her objection was that the decree of the learned Additional District Judge had allowed the plaintiff to take joint possession of an undivided third share not of the whole of the Bhowal Raj estate but only of that share in a number of specified properties which did not exhaust the properties of the Bhowal Raj estate. The said objection was overruled by the executing Court by an order dated 22nd December 1937. The learned Judge held that the plaintiff was entitled to get possession of an undivided third share of the whole of the Bhowal Raj estate. Miscellaneous Appeal No. 1 of 1938 was preferred in this Court by Srimati Bibhabati Debi against that order. While the proceedings in execution were pending in the executing Court formal delivery of possession of the share in those properties, which Srimati Bibhabati had admitted to be included in the decree under execution, was given by the executing Court in December 1937 to the plaintiff through his manager, who was the then Manager of the Court of Wards in respect of the remaining two- thirds share of the Bhowal Raj not in suit.

(3.) Srimati Bibhabati Debi filed an application in the said Miscellaneous Appeal No. 1 of 1938 for stay of delivery of possession to the plaintiff of the properties which according to her were not comprised within the decree. That application was disposed of on terms which are not now material. The said Miscellaneous Appeal No. 1 of 1938 was dismissed in February 1941. The result is that it has now been finally held that the plaintiff is entitled to-get possession of an undivided third share of the whole Bhowal Raj estate in terms of the decree of the Additional District Judge of Dacca which has-been confirmed by this Court on 25 November 1940, when final orders were made in regard to First Appeal No. 1 of 1937. In may 1941 the plaintiff was given formal possession through his manager of the remainder of the properties included in the Bhowal Raj estate. On the basis of the security furnished by the plaintiff in terms of the order of S.K. Ghose and McNair JJ. the plaintiff was paid Rs. 2,00,000 by the Manager of the Court of Wards before August 1988. He had still a surplus amount in his hands. At that stage, Srimati Bibhabati Debi made an application to this Court in First Appeal No. 1 of 1937 on 24th August 1938 in which she pointed out that the plaintiff had already taken rupees two lacs from out of the income of the properties in suit. She asked the Court to make an order on the Manager not to pay the plaintiff any further sum until the latter had furnished additional security. That application was disposed of by an order dated 7 November 1938. The order runs thus: We direct the Manager to deposit the surplus amount in his hands which is payable to the plaintiff in terms of the orders of the Court and go on depositing every month further amounts as they became available in this Court till the disposal of the appeal. (First Appeal No. 1 of 1937). The amount so deposited can only be withdrawn by the plaintiff-respondent on his furnishing additional security to the satisfaction of the registrar, Original Side, of this Court.